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2008 DIGILAW 660 (AP)

Kukkala Balakrishna v. Vijaya Oil Mill

2008-08-20

L.NARASIMHA REDDY

body2008
JUDGMENT :- The present Second Appeal is preferred by the unsuccessful plaintiffs in both the Courts below in OS No.235/95 on the file of I-Additional Junior Civil Judge, Bhimavaram and in AS No.1/2001 on the file of Senior Civil Judge, Bhimavaram. The appellants-plaintiffs filed the said suit praying for declaration of item No.2 of the plaint schedule property as their absolute property and also for a consequential relief of permanent injunction restraining the 7th respondent-7th defendant from obtaining possession of the 2nd item of the plaint schedule property either through Court or by forcible eviction and for other appropriate reliefs. 2. On service of suit summons before the Court of first instance, defendants 1 to 5 had not chosen to contest the matter and were set ex parte. The 6th and 7th respondent-6th and 7th defendants in the suit had put in their written statements and on the strength of the pleadings, the Court of first instance having settled the issues, recorded the evidence of PWs.1 to 3 and DWs1 to 3, marked EX.A.1 to EX.A.29 and EX.B.1 and EX.B.2 and on appreciation of the evidence available on record, recorded findings relating to issues 1 to 3 commencing from Paras 10 to 46 and came to the conclusion that the appellants-plaintiffs failed to prove the title and possession over the plaint schedule properties and also the plea that late Kukkala Manikyam executed EX.A.5 - will and ultimately answered the said issues 1 to 3 against the appellants-plaintiffs. While answering issue No.4 at Para 47, the Court of first instance dismissed the suit, no doubt, without costs. Aggrieved by the same, the unsuccessful plaintiffs carried the matter by way of appeal AS No 1/2001 on the file of Senior Civil Judge, Bhimavaram and the appellate Court having formulated the point for consideration, proceeded to discuss with the oral and documentary evidence available on record, commencing from Paras 10 to 15, and ultimately came to the conclusion that the Decree and Judgment made by the Court of first instance do not suffer from any illegality and accordingly dismissed the appeal without costs. Aggrieved by the same, the present second appeal had been preferred by the unsuccessful plaintiffs and this Court by judgment dated 26.7.2005 after formulating the points for consideration at Para 14, proceeded to discuss with the oral and documentary evidence available on record and the findings recorded both by the Court of first instance and also the appellate Court and came to the conclusion that the finding recorded by both the Courts below relating to the validity of EX.A.5 being unsustainable findings, the second appeal to be allowed by setting aside the Decrees and Judgments of the Courts below and accordingly allowed the second appeal, but without costs. Aggrieved by the same, the Court auction purchaser 7th respondent -7th defendant carried the matter to the Apex Court in Civil Appeal No.1245/2008 and the Apex Court was of the opinion that the judgment made in the second appeal by this Court without formulating the substantial questions of law in a second appeal cannot be sustained and accordingly while setting aside the judgment made by this Court, restored the second appeal to its original file and requested this Court to dispose of the second appeal preferably within a period of six months from the date of supply of a copy of the order and further made it clear that the Apex Court had not gone into the merits of the appeal which shall be decided after formulating the substantial questions of law and then decide the second appeal in accordance with law. Thus, in the light of the said order made by the Apex Court specified supra dated 12.2.2008, this second appeal is coming up for final hearing before this Court. 3. Submissions mark by Sri Agastya Sarma: Sri Agastya Sarma, the learned Counsel representing the appellants had pointed out to the substantial question of law on the strength of which the second appeal had been admitted by this Court and also further pointed out that not only the said substantial question of law would arise for consideration, the other substantial questions of law which had been formulated even in the grounds of the second appeal also may have to be considered. The learned Counsel also would maintain that in the light of the language of Section 100 of the Civil Code of Procedure since the same is permissible, a request was made that the other substantial questions of law which had been formulated in the grounds of second appeal also may be considered along with the substantial question of law on the strength of which the second appeal had been admitted by this Court. While further elaborating his submissions, the learned Counsel in all fairness would maintain that it is no doubt true that in the light of the order made by the Apex Court, this Court cannot again go into the merits or demerits which had been discussed by this Court while allowing the second appeal. But, however, the learned Counsel had taken this Court through the relevant portions of the findings recorded by this Court and also would maintain that it is not as though the learned Judge had not formulated the substantial questions of law, but however, the said formulation was under the caption of points for consideration and when that being so, may be that when findings had been recorded in detail by this Court, the said findings need not be totally ignored despite the observations made by the Apex Court specified above. While further elaborating his submissions, the Counsel had taken this Court through the oral and documentary evidence available on record, the findings recorded by the Court of first instance and also the findings recorded by the appellate Court, and further pointed out that since the registration or non-registration of a will being not of any serious consequence in the light of the clear and categorical evidence of PWs.2 and 3 supporting the version of the appellants-plaintiffs, the suit to be decreed by setting aside the Decrees and Judgments made by the Courts below. While further elaborating his submissions, the learned Counsel also would maintain that every circumstance cannot be taken as a suspicious circumstance and while appreciating the proof relating to the execution of the will, the recitals of the document and the relevant oral evidence adduced on behalf of the parties may have to be taken into consideration and every discrepancy in the oral evidence or certain inconsistencies, if any, which are minor, cannot be taken into serious consideration while appreciating the evidence and inasmuch as, the Court of first instance and also the appellate Court had not appreciated the oral evidence available on record especially in the context of Ex.A.5 in proper perspective, this is a fit case where, though concurrent findings had been recorded, such findings to be disturbed and the second appeal to be allowed. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions. 4. Submissions of Sri V.V.L.N. Sarma : Sri V.V.L.N. Sarma, the learned Counsel representing the 6th respondent - 6th defendant - Banking Institution would maintain that the 2nd defendant and others mortgaged the property while raising the loan and this property was brought to sale by putting the decree into execution and the Banking Institution is interested in realizing the money due to the institution. Even otherwise, the Counsel would maintain that in the light of the concurrent findings recorded by both the Courts below relating to the validity of the Will-Ex.A.5, this is not a fit case to be interfered with in a second appeal. 5. Submissions of Sri E. Srinivas : Sri E. Srinivas, the learned Counsel representing 7th respondent -7th defendant would maintain that the 7th respondent 7th defendant is an unfortunate auction purchaser who purchased the property in execution of the decree which was put into execution by the Banking Institution6th respondent-6th defendant. Here is a case where the auction purchaser purchased the property bona fide. It is not as though the 2nd defendant and others, the original debtors of the Banking Institution, are strangers to the Court auction purchaser7th respondent-7th defendant. In fact, this Court auction purchaser is owning lands just adjacent to these lands and both these parties are well aware of several of the facts. It is not as though the 2nd defendant and others, the original debtors of the Banking Institution, are strangers to the Court auction purchaser7th respondent-7th defendant. In fact, this Court auction purchaser is owning lands just adjacent to these lands and both these parties are well aware of several of the facts. The Counsel also would maintain that here is a case where the father, 2nd defendant, being unsuccessful in totally warding off or escaping from the execution proceedings, as a last resort had thought of setting up the appellants-plaintiffs by putting forth a false and fabricated document EX.A.5 by instituting the present frivolous and vexatious suit. The Counsel also would maintain that no doubt PW2-the scribe, PW3-the attester had been examined, but several variations and inconsistencies in the evidence of these witnesses had been pointed out both by the Court of first instance and also by the appellate Court and EX.A.5 had been disbelieved. The learned Counsel also would lay emphasis on the fact that when the validity or genuineness of a Will-Ex.A.5 is in question, this being predominantly a question of fact, when concurrent findings had been recorded by both the Courts below, normally in a second appeal, this Court to be very slow in disturbing such findings, unless the appellants are able to point out serious perversity or any other legal infirmity in appreciation of the evidence available on record. The Counsel also would maintain that when the Counsel for appellants is unable to point out any such serious lapses which may warrant interference under Section 100 of the Code of Civil Procedure, the second appeal to be dismissed. While further elaborating his submissions, the learned Counsel also would maintain that it may be true that the learned Judge of this Court while deciding the second appeal, formulated certain points for consideration and in fact the second appeal had been dealt with as though it was a first appeal. That was the reason why the Apex Court specifically directed that the second appeal to be decided afresh on merits and hence the said findings if any recorded, which had been disturbed by the Apex Court, cannot be looked into while deciding the present second appeal and this second appeal to be decided on its own merits not being influenced by any of the observations or findings made by the learned Judge of this Court. The Counsel also relied on Section 65 of the Code of Civil Procedure and Section 41 of the Specific Relief Act, 1963. The learned Counsel also made certain submissions relating to the applicability of the doctrine of res judicata. The Counsel also relied on several decisions and further pointed out several suspicious circumstances surrounding EX.A.5 which had not been explained by the appellants. 6. Heard the Counsel on record. Perused the oral and documentary evidence available on record, the findings recorded by the appellate Court, the findings recorded by this Court as well, and the observations made by the Apex Court in Civil Appeal No.1245/2008 while remitting the matter to this Court restoring the second appeal to its original file. 7. On 31.12.2004 this Court made the following order : "Having regard to the substantial question of law arising as to whether under the facts and circumstances the Court below was right in not considering the documents or record and coming to contra conclusions in refusing the relief of declaration. Admit and Notice." In SAMP No.l3415/2004 on the said date 31.12.2004 this Court also made the following order : "The Counsel for the petitioner submitted that the petitioner was having interim injunction all along the suit and the appeal. In view of the same, interim injunction as sought for." 8. The other substantial questions of law which had been pointed out by Sri Agastya Sarma, the learned Counsel representing the appellants are ground Nos.4, 5, 6, 12, 13, 17, 19, 2l, 22, 23, 25, 27, 33, 36, 37 and 38 raised in the Memorandum of Second Appeal and the said grounds read as hereunder : 4. The Courts below ought to have held that EX.A.5 Will, executed by Sri Kukkala Manikyam, is true, valid and binding, by framing a specific issue in this regard, since no specific issue was framed by the Courts below, as to the truth, genuinity and validity of the said Will. In any event, the Courts below ought to have seen and appreciated that in the said Will, the testator did not state about the said illicit intimacy, as no father would write about the bad character of his only son i.e., the 2nd respondent. In any event, the Courts below ought to have seen and appreciated that in the said Will, the testator did not state about the said illicit intimacy, as no father would write about the bad character of his only son i.e., the 2nd respondent. Viewed from any angle, the Courts below ought to have appreciated that the said Will was scribed by PW2 and attested by 3 witnesses, out of whom PW3 is the 3rd attestor and the other two attestors could not be examined due to the following : (a) the 1st attestor (Smt. Sri Kukkala Sitaratnam) in the said Will, is no other than the mother of appellants. It should have been appreciated that a Hindu Wife of orthodox family, who would not even spell the name of her husband would not openly state about his (husband) character and as such the appellants could not examine the said K. Sitaratnam. (b) The 2nd attestor (Sri Veeravalli Gogula) in the said Will died and as such, the appellants could not examine the said Sri Veeravalli Gogulam. (5) The Courts below ought to have appreciated that PW2 stated that Sri Kukkala Manikyam is an illiterate and dictated the contents of the said Will and thereby PW2 meant that he gave terms of the said Will to the scribe of the said Will. It should have been appreciated that PW2 stated that the said Will was scribed in the western room of testator's house and by the time of execution of the said Will, his family members were not present ill the remaining room of the said house i.e., eastern room of the said house and PW2 did not state that his family members were not present in the said western room, at the time of execution of the said Will. In any event, the Courts below ought to have seen and appreciated that as against the evidence of PWs2 and 3, there is no evidence on behalf of 6th and 7th respondents, who as DWI (R6) stated that he does not know whether the said Will was executed with the contents found therein and DW2 (R7) stated that he does not know whether the said Will was executed. The Courts below ought to have seen that as Smt. Sri Kukkala Rathamma, the life interest holder, was a cancer patient, the appellants took possession of the said properties, after death of testator, with the permission of said life interest holder and enjoying the same. (6) The Courts below ought to have seen and appreciated that Ex.A.8, EX.A.9 and Ex.A.10 Land Revenue Receipts clearly show the appellants' possession of the said properties. It should have seen that the thatched house referred to in the said Will was collapsed due to cyclone in 1986 and compensation for the said house was given by the Government to the appellant and EX.A.13 clinchingly proves and establishes the same. As such, the Courts below ought to have held that the said Will is true, valid and binding. Non-consideration of the above referred material evidence on record is substantial question of law for kind consideration of the Hon'ble Court. (9) The lower Courts ought to have seen and appreciated that as the appellants are not parties to OS No.17 of 1988 on the file of the 1st appellate Court, the suit of appellants is maintainable, as per the provisions of sub-rule (4) of Rule 92 of Order XXI of the Code of Civil Procedure. The Courts below ought to have seen that as item 2 of the suit properties were sold in auction in EP No.7 of 1993, declaration and perpetual injunction was sought by the appellants regarding the said item and the same is maintainable, since it is unnecessary to seek relief, regarding the remaining items of the said properties. In the event, Section 41 of the Specific Relief Act, does not apply, to the peculiar facts and circumstances of the instant case. (12) The Courts below ought to have framed a specific issue regarding validity of EX.A5 - Will and ought to have answered the same in favour of appellants. (13) The Courts below wrongly adopted different scales in assessing the evidence, adduced on behalf of appellants, as against the evidence adduced on behalf of 6th and 7th respondents in the suit, as well as 1st appeal. Non-consideration of material documentary evidence in the right perspective is a substantial question of law. (13) The Courts below wrongly adopted different scales in assessing the evidence, adduced on behalf of appellants, as against the evidence adduced on behalf of 6th and 7th respondents in the suit, as well as 1st appeal. Non-consideration of material documentary evidence in the right perspective is a substantial question of law. (17) The learned Judge of First appellate Court ought not to have accepted the averments and contentions of the respondent No.7, which has been adopted by 6th respondent, since the same has the effect of depriving the appellants of their title and interest in the schedule property, by virtue of Ex.A5-Will and also by virtue of acquiring rights, title and interest in the ancestral property (schedule property) by birth, being grandsons of K. Manikyam. (19) The learned Judge of First appellate Court ought to have seen and appreciated that Section 41 of the Specific Relief Act, 1963 does not disentitle the petitioners from protecting their possession and enjoyment of the suit schedule property, either in their own right as legatees under Ex.A.5 - Will or having acquired rights, title and interest in the schedule property by birth, being grandsons of Testator under Ex.A5, in the absence of Ex.A5 (even assuring for a while for arguments sake). (21) The learned Judge of the First appellate Court misconstrued the main contentions and submissions of appellants herein. The Courts below ought to have appreciated that EP proceedings in respect of the schedule property were in OS No.17/88 by R6, during minority of petitioners. In any event, the learned Judges ought to have appreciated that the only course that would be adopted by 7th respondent would be to take possession of petition schedule property by taking steps in execution of the ex parte Decree, for which minors were neither parties nor they have knowledge of the said proceedings in OS No.17/88 or consequent execution proceedings, till filing of OS No.235/95 i.e., just prior to filing of OS No.235/95. (22) The learned Judge of the First appellate Court, ought to have appreciated that the judgment of the trial Court in OS No.235/95 is appealed in AS No.1 of 2001 and the main contention of appellants in AS No.1 of 2002 is that the learned Judge who passed judgment in OS No.235/95, neither framed a specific issue regarding validity of the Will dated 15.12.1978 nor the appellants were given adequate opportunity to adduce elaborate evidence to further c1inchingly prove and establish validity of Will, dated 15.12.1978 by meeting/rebutting the contentions of respondents, even after examining the scribe and one of the attestor to the Will-Ex.A.5. (23) The learned Judge of the First appellate Court ought to have seen and appreciated that auction purchaser of a property in execution proceedings of an ex parte decree can be restrained by way of an injunction, more particularly, when the property belonging to minors was sought to be sold in Court auction, based on decree obtained in ex parte proceedings in OS No.17/88 and consequent execution thereof and also when the appellants were minors and were not aware of the said ex parte proceedings, being not parties to proceedings in OS No.17/88. (25) The learned Judge of the First appellate Court ought to have appreciated that the appellants were minors during the period, when R6 Bank, initiated legal proceedings and as such, ought to have appreciated the peculiar facts of the case, while perusing and discussing the material documentary evidence on record in right perspective. (27) The learned Judge of First appellate Court was confused whether the will was marked as EX.A.5 or Ex.A.1, as referred to Para 11 of judgment impugned in the above appeal. The same goes to show the learned Judge misconstrued the facts, as well as law. In any event, the learned Judge was not justified in not accepting the evidence of PW2, since a perusal of the same, confirms and justifies for giving a finding that the EX.A.5 will is genuine and valid. (33) The learned Judge of First appellate Court was not justified in not considering all points/grounds raised by appellants, particularly, the material documents, wherein MRO, Palakoderu issued a certificate dated 24.3.1995, marked as Ex.A.13, certifying that the house in Vissakoderu relating to the first plaintiff was fully damaged due to floods in the year 1986. (33) The learned Judge of First appellate Court was not justified in not considering all points/grounds raised by appellants, particularly, the material documents, wherein MRO, Palakoderu issued a certificate dated 24.3.1995, marked as Ex.A.13, certifying that the house in Vissakoderu relating to the first plaintiff was fully damaged due to floods in the year 1986. Curiously, !he trial Court gave a diverging and conflicting finding on the material documents and the First appellate Court did not consider the same. Non-consideration of material aspects of evidence by the trial Court and ignorance of the same, by the appellate Court is a substantial question of law, for kind consideration of this Hon'ble Court. (36) The learned Judge of First appellate Court was not justified in observing that the plaintiffs cannot seek the relief of perpetual injunction, restraining defendant No.7 from taking possession of item No.2 of plaint schedule property, through process of law, without setting aside the sale conducted and confirmed by Court in view of EX.A.5 and due to non-subsisting/existing rights, in favour of D2 to create equitable mortgage in favour of D6. (37) The learned Judge of First appellate Court was not justified in observing that in the appeal, neither of the parties stated any legal position, since the First appellate Court is under legal obligation to peruse and consider all the documents, as well as the material evidence on record, While framing, considering and answering all the issues framed before trial Court. (38) The learned Judge of First appellate Court was not justified in answering the only point that the applicants are not entitled for a declaration of title and consequent permanent injunction, without perusing and considering all the material documents available on record, particularly, exhibits marked by the plaintiffs/appellants. 9. The Apex Court in Civil Appeal No.1245/2008 while allowing the appeal remitting the matter to this Court observed as hereunder : "I. Leave granted. 2. At the time of issuing notice to the special leave petition, this Court confined notice as to why the Second Appeal should not be remitted to the High Court for failure to formulate and decide the substantial question of law as required by Section 100 of the Code of Civil Procedure. 3. 2. At the time of issuing notice to the special leave petition, this Court confined notice as to why the Second Appeal should not be remitted to the High Court for failure to formulate and decide the substantial question of law as required by Section 100 of the Code of Civil Procedure. 3. A suit was filed by the plaintiffs respondents for declaration that Item No.2 of the plaint schedule property was their absolute property, and for a perpetual injunction, restraining the respondents from obtaining possession of the said item. The suit was dismissed, which was affirmed in appeal. However, by the impugned judgment of the High Court passed in second appeal, the suit was decreed. Feeling aggrieved by the aforesaid judgment of the High Court of Andhra Pradesh at Hyderabad, a special leave petition has been filed in respect of which the leave has already been granted. 4. Having heard the learned Counsel for the parties and after examining the judgment of the High Court passed in the second appeal, we are of the view that the judgment in second appeal of the High Court is liable to be set aside on a very short question. It is now well settled by catena of decisions of this Court that the High Court in second appeal, before allowing the same, ought to have formulated the substantial questions of law and thereafter, to decide the same on consideration of such substantial questions of law. In this case, admittedly no such substantial question of law had been formulated and thereafter, the second appeal was allowed. That being the position, we set aside the judgment of the High Court passed in second appeal and remit the appeal back to the High Court for fresh decision after formulating the substantial questions of law and thereafter, to decide it on merits. 5. For the reasons aforesaid, the judgment of the High Court is set aside. The second appeal is restored to its original file. The High Court is requested to dispose of the second appeal at an early date preferably within six months from the date of supply of a copy of this order to it. We make it clear that we have not gone into the merits of the appeal which shall be decided after formulating the substantial questions of law and then to decide the second appeal in accordance with law. 6. We make it clear that we have not gone into the merits of the appeal which shall be decided after formulating the substantial questions of law and then to decide the second appeal in accordance with law. 6. The appeal is, therefore, allowed to the extent indicated above. There will no order as to costs." 10. Though substantial question of law on the strength of which the second appeal had been admitted, several other substantial questions of law had been pointed out by Sri Agastya Sarma, the learned Counsel representing the appellants which had been already specified supra. On a careful appreciation of the facts and circumstances, the principal question on the strength of which the submissions had been made by the respective Counsel on record is in relation to the findings recorded by both the Court of first instance and also the appellate Court regarding EX.A.5 - Will. The relevant submissions made by the Counsel• on record already had been specified above. For the purpose of convenience, the parties hereinafter would be referred to as shown in the original suit OS No.235/95 on the file of I-Additional Junior Civil Judge, Bhimavaram. 11. As already specified supra, defendants 1 to 5 had not chosen to contest the suit. The 6th and 7th defendants had filed their respective written statements. 12. The plaintiffs filed the suit for _declaration of title relating to item No.2 of the plaint schedule property and for a consequential relief of permanent injunction restraining the 7th defendant from obtaining possession of the 2nd item of plaint schedule property either through Court or by forcible eviction and for other appropriate reliefs. The plaintiffs averred in the plaint as hereunder: "Sri Kukkala Manikyam is the husband of Smt. Kukkala Rattamma and the father of plaintiffs 2, 4 and 5. An extent of 0-73 cents of wet land in RS No.212/4 of Gorganamudi, which was shown as item No.1 of the plaint schedule property originally belonged to Shri Pothula Anjaneyulu and his son at Veeravallivaripam, R/o. Rayakuduru. The said Kukkala Manikyam purchased the first item of schedule property from the said Anjaneyulu and his son for a valuable consideration of Rs.2,000/- under a registered sale deed dated 4.5.1963. The said Kukkala Manikyam purchased the first item of schedule property from the said Anjaneyulu and his son for a valuable consideration of Rs.2,000/- under a registered sale deed dated 4.5.1963. Under the said sale deed consideration was paid and received an extent of Ac.1-36 1/2 cts of wet land in RS No.224 of pennada behind his second item of the schedule property originally belonged to Shri Somu Yerreswararao of Gorganamudi. Kukkala Manikyam purchased the said item trom Somu Yerreswararao for a valuable consideration of Rs.4,000/- under a registered sale deed dated 5.9.1966. The said consideration was paid and received as mentioned in the said sale deed. The extent of 0-33 cents between in RS No.171/7 and the extent of 0-19 cents between in RS No.171/8 of Gorganamudi described as items 1, 2 and 3 of the said properties originally belonged to Mallula Venkataratnam and others of Gorganamudi. Kukkala Manikyam purchased the said item from Mallula Venkataratnam for a valuable consideration of Rs.2,000/- under a registered sale deed dated 21.12.1967. Ever since, the said purchasers, was in exclusive possession and enjoyment of the said properties. The said plaintiffs are the grandsons of Kukkala Manikyam and the sons of second defendant. In or about 1976, the second defendant developed illicit intimacy with Smt. Soolamreddi Satyavathi wife of Simhadri of Vissakoderu and ever since he is leading adulterous life with her neglecting the welfare of his wife and children and acting adverse to their interest. The said Kukkala Manikyam in a sound and disposing state of mind executed a Will dated 15.12.1978 bequeathing after his life and after the life of wife Satyavathi. The plaint schedule properties and other properties which are his self-acquired properties of the plaintiffs 1 to 3 and to the male issues that would be born in future to the second defendant to be enjoyed by them with absolute rights by 15.12.1978 the plaintiffs 1 to 3 were born and subsequent to 15.12.1978 the 4th plaintiff was born to the second defendant. The said Kukkala Manikyam died on 25.6.1979. The said Kukkala Manikyam died on 25.6.1979. After the death of Kukkala Manikyam, the plaintiffs took possession of the properties with the permission of Kukkala Rattamma, as she was unable to move from the bed and has been in possession and enjoyment of the same by paying taxes thereof to the Government without any hindrance without any let from any quarter whatsoever as per the said Will dated 15.12.1978. Kukkala Rattamma also died on 28.7.1985. Except the plaintiffs, none else, much less the defendants 2, 4 and 5 have got any manner of right, possession or enjoyment in the said properties. The second defendant is the sole proprietor of the first defendant. Four days ago, the plaintiffs came to know that in or about 1982, the second defendant for the purpose of carrying on business of the first defendant borrowed a medium term loan of about Rs.15,000/- from the 6th defendant. That the defendants 2, 4 and 5 adopted the title deeds for the schedule properties with the 6th defendant and created equitable mortgage over the same for the alleged medium term loan as security for the same. The 6th defendant filed OS No.17/88 on the file of the Court of the Subordinate Judge, Bhimavaram, for recovery of the alleged medium term loan and brought item No.2 of the said properties to the sale. The defendants 2, 4 and 5 remained ex parte in all the said proceedings and perpetuated commission of the said unlawful acts and that the 7th defendant purchased the said item No.2 in the alleged Court auction in or about second week of February, 1995. The defendants 2, 4 and 5 have no right to deposit the title deeds for the said properties with the 6th defendant and to create equitable mortgage over the same. The 6th defendant has no right to bring the said item No.2 for sale to recover the alleged medium term loan. The 7th defendant has no right to purchase item No.2 in the alleged Court auction. By the alleged acts of the defendants a threat has posed against the plaintiffs that they would be deprived of their exclusive possession and enjoyment of the said item No.2 as owners. thereof. The 7th defendant cannot acquire any right in the second item by the alleged purchase in the Court auction. By the alleged acts of the defendants a threat has posed against the plaintiffs that they would be deprived of their exclusive possession and enjoyment of the said item No.2 as owners. thereof. The 7th defendant cannot acquire any right in the second item by the alleged purchase in the Court auction. The 7th defendant is proclaiming that they would forcibly obtained possession of the said second item and evict the plaintiffs therefrom He has been making clandestine preparations for forcibly evicting the plaintiffs from the second item of the property. Hence, the plaintiffs prayed for declaration that second item is their absolute property and consequentially for permanent injunction restraining the 7th defendant and his men from obtaining possession of item No.2." 13. The 6th defendant filed written statement with the following averments :- "The 6th defendant has filed a suit in as No.17/88, against the defendants 1 to 5 and Kukkala Rattamma and obtained a final decree also and in pursuance of the decree obtained by the 6th defendant, the bank has also filed EP No.7/93 on the file of the Sub-Court, Bhimavaram and brought the second item of the schedule property to sale and the said property has been duly sold in Court auction and has been purchased by 7th defendant being a Court auction purchaser and being the highest bidder of the said proceedings taken in due process of law and they cannot be questioned. The second defendant has filed petitions relating to on 129 the original side of OS No.17/88 on the file of the Sub-Court, Bhimavaram to set aside, that too after Court sale has been held in the said suit. The decree passed in the said suit and the said petitions themselves are not maintainable and the 6th defendant has been contesting the same. The said Kukkala Venkateswararao has also filed many petitions in execution side in OS No.171 88 in EP No.7/93 and they are also not maintainable. Having failed in his efforts to see that the Court auction sale is not set aside and is not liable to be set aside, now the second defendant has resorted to the untenable method of getting the above suit filed by his sons and the said suit which is got collusively filed by the second defendant and the defendants I, 3, 4 and 5 is not at all maintainable. The plaintiffs have got any rights and if they have any rights they should have agitated for the same in OS No.17/88. To give colouring of truthfulness, the plaintiffs at the instance of the 2nd defendant added items 1 and 3 in the plaint schedule. The 6th defendant bank which holds mortgage over the schedule property has duly obtained preliminary and final decree in its favour and as has been mentioned brought item No.2 of the schedule property to sale and the said property has been duly sold and purchased by the 7th defendant as highest bidder. It is reliably learnt that the schedule properties have in fact been purchased with the money of the 2nd defendant and they have been all along in possession and enjoyment of the 2nd defendant and he alone is in possession and enjoyment of the title deeds relating to the schedule properties and deposited with the bank with an intention to create equitable mortgage and defendants bank which has got mortgage rights having obtained [mal decree in the said suit OS No.17/88 brought the said property to sale in execution proceedings thereon. A number of notices and publications have been issued and at no time any of the plaintiffs have choosen to raise any objection for the execution proceedings and now just to screen the defendants 1 to 5 at their instance collusively the suit is filed without any bona fides. Even assuming for a moment that the schedule properties have been purchased with the monies of late Kukkala Manikyam and after his death the same was devolved on the 2nd defendant and he having inherited the same has been in possession and enjoyment of the same and he is the sole owner in possession of the respective sale deeds of the said property and other documents and as of right deposited the same with the 6th defendant bank for loan. Moreover, late Manikyam and 2nd defendant used to live together and have been living common and joint earning with the properties purchased by late Manikyam with the said earnings of the 2nd defendant and as such also the mortgage rights created by him in favour of the 6th defendant cannot be questioned. The story of adultery is invented by the plaintiffs and the defendants 1 to 5 for the sake of suit. The story of adultery is invented by the plaintiffs and the defendants 1 to 5 for the sake of suit. The alleged will dated 15.12.1978 said to have been executed by late Manikyam is neither true nor tenable and it is a forged document invented for the purpose of the suit. No rights were accrued to any of the plaintiffs by virtue of the said Will. The very fact that the plaintiffs did not canvass any of their alleged rights when the matter is pending in Sub-Court, Bhimavaram in as No.17/88 would go to show falsity of the pleas set up by them. The plaintiffs are never in possession and enjoyment of the schedule properties at any time. It is absured to contest that the 6th defendant conveyed some information to the plaintiffs as mentioned by them. The Court auction purchaser has got every right to take possession of the land purchased by him and he has got every right to do so. The plaintiffs cannot file any suit for partial declaration that too when they set up some rights. Hence, the suit is bad on the said ground. The rights of the plaintiffs if any are barred by time and hence the suit is not within the time. The suit is also bad for non-joinder of parties. All the parties in the suit as No.17/88 should have been shown as parties and the suit is liable to be dismissed. The alleged certificate said to have been given by M.R.O. has no relevancy and it cannot also bear the date 24.9.1995, and from the same it can be inferred to what extent the plaintiffs and defendants I to 5 can forge the document. The cause of action is not correct. By filing a present suit the plaintiffs shall not be allowed to obstruct due process of law in OS No.17/88 on the file of the Sub-Court. Hence, the suit is not maintainable and it is liable to be dismissed in limini." 14. The 7th defendant filed written statement with the following averments : "It was pleaded that the plaintiffs are not entitled for any decree in their favour and none of the plaintiffs are in possession of the property which had been original purchased by 7th defendant in Court auction. The 7th defendant filed written statement with the following averments : "It was pleaded that the plaintiffs are not entitled for any decree in their favour and none of the plaintiffs are in possession of the property which had been original purchased by 7th defendant in Court auction. It was also pleaded that the 6th defendant obtained a decree in OS No. 17/88 and in pursuance thereof, the 6th defendant filed EP No.7/93 on the file of Subordinate Judge, Bhimavaram and brought the said property to sale. It was also pleaded that the relief prayed for is misconceived and only to support the wrongful case set up by the plaintiffs. The second defendant who is the owner of the schedule property and has been in possession and enjoyment of the same and in particular item No.2 of the schedule property has also been in possession and enjoyment of the title deeds and other relevant documents thereof and he had created an equitable mortgage by deposit of title deeds in favour of the 6th defendant in connection with the loan he has contacted with the said bank. Since the said loan had not been duly discharged, the 6th defendant filed OS No.17/88 on the file of Subordinate Judge, Bhimavaram and obtained preliminary and final decree and in due course filed EP No.7/93 and the property was brought to sale in Court auction and the 7th defendant purchased the same for an amount of Rs.11,000/- and the 7th defendant being the highest bidder is entitled to be put in possession of the said property. It was also averred that the 7th defendant also deposited the amount and by filing the present suit, the plaintiffs intend to circumvent the due process of law. It was also pleaded that the Court cannot grant any injunction whatsoever since it would amount to making a restraint order preventing the 6th respondent from proceeding with the execution of the decree lawfully obtained. It was also pleaded that the 2nd defendant and defendants 1, 3, 4 and 5 had instigated the plaintiffs to file the present suit. It was also pleaded that the 2nd defendant has been living alone with his wife and children including the plaintiffs and late Manikyam never executed any Will whatsoever and it is a forged document, brought into existence by the 2nd defendant and plaintiffs. It was also pleaded that the 2nd defendant has been living alone with his wife and children including the plaintiffs and late Manikyam never executed any Will whatsoever and it is a forged document, brought into existence by the 2nd defendant and plaintiffs. Late Manikyam has no right also to execute the said Will. It was also pleaded that the suit is also bad for nonjoinder of necessary parties. The suit is barred by limitation by the principles of res judicata." 15. On the strength of these pleadings, the following issues were settled before the Court of first instance : - (1) Whether the plaintiffs are entitled to the declaration as prayed for? (2) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? (3) Whether the suit is bad for non-joinder of proper and necessary parties? (4) To what relief? 16. Further the under-noted oral and documentary evidence had been adduced by the parties : Witnesses examined For Plaintiffs : PW1 :-Kukkala Satyamurthy PW2 :-Kusuri Raghavachari PW3 Cherukavada Venkatramaiah For defendants : DW1 :-S. Rangacharyulam DW2 :-Bokka Subba Rao DW3 :-Illa Rambabu Documents marked For plaintiffs : Ex.A.1/4-5-63 :-Registration extract of sale deed executed by Pasthula Anjaneyulu etc., in favour of Kukkala Manikyam. Ex.A. 2/5-9-66 :-Registration extract of sale deed executed by Seemu Yerraswararao in favour of Kukkala Manikyam. Ex.A.3/21-12-67 :-Registration extract of sale deed executed by Mallule Subbarao etc., in favour of Kukkala Mamkyam. Ex.A.4/29-7 -7 5 : -Order of Settlement Officer, Eluru in favour of Kukkala Manikyam. Ex.A.5/15-12-78 :-Will executed by Kukkala Manikyam. Ex.A.6/14-3-95 :-Extract of Death Certificate of Kukkala Manikyam. Ex.A.7/7-9-95 :-Extract of Death Certificate of Kukkala Rattamma. Ex.A.8/15-4-81 :-D.R. Receipt in the name of R. Balakrishna Ex.A.9/13-5-84 :-D.R. Receipt in the name of R. Balakrishna Ex.A.10/26-5-86 :-D.R. Receipt in the name of R. Balakrishna Ex.A.11/21-8-91 :-Receipt in the name of Kukkala Balakrishna showing purchase of manures. Ex.A.12/29-6-85 :-Receipt in the name of Kukkala Balakrishna showing purchase of manures. Ex.A.13/24-3-95 : -Certificate issued by M.R.O., Palakoderu Ex.A.14 :-Pattedar Pass Book in the name of Kukkala Balakrishna Ex.A.15 :-Pattedar Pass Book in the name of Kukkala Balakrishna Ex.A.16 :-Title Deed Book in the name of K Balakrishna Ex.A.17 :-Title Deed Book in the name of K Balakrishna Ex.A.18 :-Pattedar Pass Book in the name of PW1. Ex.A.19 :-Pattedar Pass Book in the name of PW1. Ex.A.19 :-Pattedar Pass Book in the name of PW1. Ex.A.20 :-Title Deed Book in the name of PW1. Ex.A. 21 :-Title Deed Book in the name of PW1. Ex.A.22 :-Pattedar Pass Book if the name of Kukkala Maheswararao Ex.A.23 :- Pattedar Pass Book in the name of Kukkala Maheswararao Ex.A.24 :-Title Deed Book in the name of Kukkala Maheswara Rao Ex.A.25 :-Title Deed Book in the name of Kukkala Maheswara Rao Ex.A. 26 :-Pattedar Pass Book in the name of Kukkala Venkata China Manikyalarao, C/o. Guardian Seetharathan Ex.A.27 :-Pattedar Pass Book in the name of Kukkala Venkata China Manikyalarao, C/o. Guardian Seetharathan Ex.A.28 :-Title Deed Book in the name of Kukkala Venkata China Manikyalarao, C/o. Guardian Seetharathan Ex.A.29 :-Title Deed Book in the name of Kukkala Venkata China Manikyalarao, C/o. Guardian Seetharathan For defendants Ex.B.1/8-6-90 :-Certified copy of Final Decree in IA No.1 508 in OS No.1 7/88 on the file of S.J., Bhimavaram. 17. In the Appendix of Evidence, no doubt, Ex.B.2 had not been shown. 18. The trial Court recorded reasons in detailed, relied on certain decisions, referred to Section 65 of the Code of Civil Procedure and Section 41 of the Specific Relief Act, 1963, disbelieved Ex.A.5 on appreciation of the evidence available on record, pointing out certain inconsistencies and discrepancies in between the evidence of PW2 and PW3 and ultimately came to the conclusion that the plaintiffs are not entitled to the reliefs prayed for and dismissed the suit without costs. The appellate Court in AS No.1/2001 on the file of Senior Civil Judge, Bhimavaram, at Para 9 formulated the following point for consideration : "The point for consideration is whether the appellants are entitled for the declaration of their title to item No.2 of the plaint schedule and also entitled for consequential relief of perpetual injunction and whether the Judgment and Decree of the lower Court suffer from infirmities?" 19. The appellate Court appreciated the oral and documentary evidence, further emphasized on several circumstances which may have to be taken as suspicious surrounding Ex.A.5 and dismissed the appeal. As already referred to supra, this Court allowed the second appeal and the same was carried to the Apex Court and the Apex Court remitted the matter on, the ground that the substantial questions of law had not been formulated while deciding the second appeal. As already referred to supra, this Court allowed the second appeal and the same was carried to the Apex Court and the Apex Court remitted the matter on, the ground that the substantial questions of law had not been formulated while deciding the second appeal. Though submissions in elaboration had been made by the Counsel on record, relating to the substantial questions of law pointed out by Sri Agastya Sanna, the Counsel for appellants, asserting that though concurrent findings had been recorded, the second appeal to be allowed and on the contrary, Sri E. Srinivas, the learned Counsel representing 7th respondent contending that no substantial question of law as such is involved in the present second appeal, in view of the fact that predominantly the genuineness or otherwise of the validity of a Will being predominantly a question of fact, in the light of the concurrent findings recorded by both the Courts below, such findings not to be disturbed, this Court is convinced that the only substantial question of law which may have to be decided in the light of the substantial question of law formulated by this Court while admitting the' second appeal and several questions pointed out by Sri Agastya Sarma in the Memorandum of Grounds of second appeal, whether the findings recorded by the Courts below relating to the validity of Ex.A.5 to be confirmed or to be disturbed in the facts and circumstances of the case? In nutshell this is the only question in relation to which elaborate submissions had been made by the Counsel representing the contesting parties. 20. It is a case where on appreciation of the evidence of PW2 and PW3 apart from the evidence of PW1, concurrent findings had been recorded that on the strength of Ex.A.5, the relief of declaration of title or the consequential relief of injunction cannot be granted. 21. Sri Agastya Sarma placed strong reliance on the decision of the Apex Court in Indu Bala v. Manindra Chandra, AIR 1982 SC 133 , wherein the Apex Court at Paras 7 and 8 observed as hereunder : "This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of •the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529 , 1959 Suppl (1) SCR 426 = AIR 1959 SC 443 and (1962) 3 SCR 195 = AIR 1962 SC 567 ). Needless to say that any and every circumstance is not a 'suspicious' circumstance A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. Learned Counsel relied on the decision of this Court in the case of Rani Purnima Devi v. Kumar Khagendra Narayan Dev reported in (1962) 3 SCR 195 = AIR 1962 SC 567 (supra). Learned Counsel relied on the decision of this Court in the case of Rani Purnima Devi v. Kumar Khagendra Narayan Dev reported in (1962) 3 SCR 195 = AIR 1962 SC 567 (supra). In this case the Will in question gave the entire property by the testator to a distant relation of his to the exclusion of the testator's widow, sister and his other relations, and even his daughter, who would be his natural heirs, but subject, of course, to the condition that the legatee would maintain the widow and the sister of the testator. The testator's signatures were not his usual signatures, nor in the same ink as the rest of the Will; the testator used to sign blank papers for use in his cases in Court and he used to send them to his lawyer through his servants; the testator did not appear before the Sub-Registrar for the purpose of registration of the Will but the Sub-Registrar sent only his clerk to the residence of the testator for the purpose of registration; there were 16 attesting witnesses who attested the Will, but of them, only 4 interested witnesses were examined to the exclusion of disinterested witnesses. The above are undoubtedly suspicious circumstances, circumstances creating doubt in the mind of the Court. In spite of these circumstances, it was held by the trial Court that the Will was duly executed and attested. On appeal, the High Court affirmed the order of the trial Court. On further appeal, this Court held that the circumstances were suspicious and were not satisfactorily explained and hence held that "the due execution and attestation, of the Will were not proved." 22. In the light of certain observations made by the Apex Court, submissions were made that every circumstance cannot be viewed as a suspicious circumstance while appreciating evidence, while deciding the validity or genuineness of a Will. It is needless to say that predominantly this is a question of fact. Both the Court of first instance and also the appellate Court recorded reasons, pointed out certain discrepancies or inconsistencies in between the evidence of the scribe and the attestor relating to EX.A.5 and recorded findings. It is needless to say that predominantly this is a question of fact. Both the Court of first instance and also the appellate Court recorded reasons, pointed out certain discrepancies or inconsistencies in between the evidence of the scribe and the attestor relating to EX.A.5 and recorded findings. It may be true that when perverse findings had been recorded or when the evidence available on record had not been appreciated in proper perspective or the relevant material portions of the oral evidence had been totally ignored, may be even in a second appeal for the limited purpose of appreciating whether proper findings had been recorded, the evidence may be scrutinized but not otherwise. PW2 is the scribe of the Will- EX.A5. PW3 is one of the attestors of the Will-Ex.A5. PW1 and his brother, these were all tender age at the time of execution of the Will in controversy and hence, the evidence of PWI may not be of much help relating to the proof of EX.A5. In the evidence of PW2, this witness deposed that the Will was executed in the western room of the thatched house and this witness also deposed that he had directly written the contents of the Will at the dictation of the testator and there was no necessity for Manikyam to tell him since he had some knowledge and this witness also deposed that there was no reason for not registering Ex.A.5. But, however, this witness deposed that there was no necessity to register the Will. But, PW3 deposed that he had attested EX.AS and the scribe read over the contents of the Will and thereafter the testator admitted the correctness of the recitals and affixed thumb impression. This witness also deposed that by the time he had gone at the time of execution of the Will, his son, daughter-in-law, grand children were also present and in their presence, the said Will was executed and the testator also told him the reason for bequeathing the property by Will to the effect that his son was wasting the money and hence life interest was given to his wife and absolute interest to the grandsons. It is pertinent to note that PW2 deposed in a particular fashion relating to the direction of the contents made• directly and PW3 further explaining something more. It is pertinent to note that PW2 deposed in a particular fashion relating to the direction of the contents made• directly and PW3 further explaining something more. Apart from this aspect of the matter, the discrepancies relating to the persons who were present and the other aspects also had been taken into consideration. It is no doubt true that the Will is not a compulsory registerable document. While examining the validity of Ex.A5, the other attending circumstances and the conduct of the parties also may have to be appreciated and the time at which the suit had been instituted by the plaintiffs also would throw some suspicion and the bona fides of the present litigation, especially in the light of the several applications which had been moved by defendant No.2 and also in the light of Ex.B.1 and EX.B.2 as well. It is pertinent to note that after the 6th defendant had the preliminary and final decrees in OS No.17/88 and after the property was brought to sale, the 2nd defendant, being unsuccessful in all his attempts, to further stall the execution proceedings, who appeared to have thought of this litigation and the present plaintiffs instituted the suit prayingf6r the reliefs specified above. Further strong reliance was placed on Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 , Guro v. Atma Singh, (1992) 2 SCC 507 , Savitri Bai v. Om Prakash Gupta and others, 1996 (3) ALT 424 , Ramchandra v. Champabai, AIR 1965 SC 354 and Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 . Reliance also was placed on V. Venkateswara Rao v. Y. Nageswara Rao and others, 1999 (6) ALD 602 = 1999 (6) ALT 715 . In Jaswant Kaur's case (supra), the Apex Court at Paras 9 and 13 observed as hereunder : "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by that testator. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by that testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will. It is the Will of a man of such affluence and social status which has to be judged in this case. It is not as if the burden of proof varies with the riches and social prestige of the testator but habits of life are prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice. Normally therefore, a genuine Will of a propertied man, well positioned in society too, does not suffer from the loopholes and infirmities which may understandably beset an humbler testamentary instrument." Further strong reliance was placed on Mallannagari Mallareddy v. Mallannagari Susheela, 2006 (6) ALD 485 = 2006 (6) ALT 733 , Kadiyala Appa Rao (died) per L.Rs. v. Kadiyala Kamalamma, 2008 (3) ALD 13 = 2008 (4) ALT 405 and H. Venkatachala v. N Thimmajamma, AIR 1959 SC 443 . 23. In the light of the concurrent findings which had been recorded, certain submissions were made in relation to Section 65 of the Civil Code of Procedure, which deals with purchaser's title and the said provision reads as hereunder : "Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute." 24. Section 41 of the Specific Relief Act, 1963 also had been relied upon. It is no doubt true that a decree for perpetual injunction cannot be granted to restrain a party from lawfully executing the decree, may be, except in cases where such decree is a fraudulent decree or otherwise. Section 41 of the Specific Relief Act, 1963 also had been relied upon. It is no doubt true that a decree for perpetual injunction cannot be granted to restrain a party from lawfully executing the decree, may be, except in cases where such decree is a fraudulent decree or otherwise. It is no doubt true that there is no implied warranty of title in a Court auction sale and the principle of caveat emptor applies. But, however, here is a case where the sons had been set up by the father and on the strength of Ex.A.5, an unregistered Will, the relief of declaration of title and perpetual injunction relating to the plaint schedule property had been prayed for. 25. On appreciation of series of events and the conduct of parties, this Court is thoroughly satisfied that the present litigation had been thought of only with a view to prevent the further execution of the Decree lawfully obtained by the 6th defendant and however, the 6th defendant was successful in putting the property to sale by way of execution and the 7th defendant became the successful bidder. Hence, in the light of the several of the surrounding suspicious circumstances relating to Ex.A.5 which had been well discussed by both the Court of first instance and also the appellate Court, this Court is satisfied that this is not a matter to be interfered with and such findings not to be disturbed in a second appeal. Accordingly, the second appeal shall stand dismissed with costs throughout.